Citation Nr: 0109256
Decision Date: 03/29/01 Archive Date: 04/03/01
DOCKET NO. 95-19 579 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to service connection for chronic fatigue
syndrome, also claimed as chronic fatigue due to an
undiagnosed illness.
2. Entitlement to an original evaluation in excess of 10
percent for post-traumatic stress disorder (PTSD).
3. Entitlement to an increased (compensable) evaluation for
a chest scar.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. W. Loeb, Counsel
INTRODUCTION
The veteran served on active duty from December 1986 to May
1987, from November 1990 to June 1991, and from October 1992
to July 1993. In January 1998 the Board of Veterans' Appeals
(Board) denied entitlement to service connection for
sinus/nasal disability and remanded the issues listed on the
title page to the Department of Veterans Affairs (VA)
Regional Office (RO) in Detroit, Michigan, for additional
development. The case was returned to the Board in February
2001.
The January 1998 remand referred the raised issues of
entitlement to service connection for impaired hearing, eye
disability, and skin disability to the RO for adjudication.
The Board notes, however, that these issues have not been
adjudicated. Consequently, they are again referred to the RO
for adjudication.
FINDINGS OF FACT
1. All available evidence necessary for an equitable
disposition of the issues on appeal has been obtained.
2. The veteran does not have chronic fatigue syndrome or
chronic fatigue due to an undiagnosed illness.
3. The veteran's PTSD causes no more than mild social and
industrial impairment; depressed mood, suspiciousness, panic
attacks, chronic sleep impairment, or mild memory loss is not
shown.
4. The veteran's chest scar is not poorly nourished, tender,
painful or productive of significant functional impairment.
CONCLUSIONS OF LAW
1. Chronic fatigue syndrome, also claimed as chronic fatigue
due to an undiagnosed illness, was not incurred in or
aggravated by active duty. 38 U.S.C.A. §§ 1110, 1117, 1131
(West 1991 & Supp. 2000); 38 C.F.R. §§ 3.303, 3.317 (2000).
2. The schedular requirements for an evaluation in excess of
10 percent for PTSD have not been met. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. 4.132, Diagnostic Code 9411 (1996);
38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2000).
3. The schedular requirements for a compensable evaluation
for a chest scar have not been met. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7800, 7803,
7804, 7805 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board notes that during the pendency of the
veteran's appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. This liberalizing law is applicable to the
veteran's claims. See Karnas v. Derwinski, 1 Vet. App. 308,
312-13 (1991). It essentially eliminates the requirement
that a claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also includes new notification provisions.
Specifically, it requires VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant.
The record reflects that the RO considered the veteran's
claims under the VCAA before returning the case to the Board
in February 2000. The veteran has been informed of the
requirements for establishing service connection for her
claimed chronic fatigue syndrome, also claimed as chronic
fatigue due to an undiagnosed illness. She has also been
informed of the criteria for evaluating her PTSD and chest
scar. She has been requested to provide information
concerning potential sources of medical evidence pertaining
to postservice treatment for these disabilities, and all
pertinent treatment records have been obtained. The veteran
has been provided recent VA examinations for chronic fatigue
syndrome, PTSD, and a chest scar. In sum, the facts relevant
to the veteran's claims have been properly developed and
there is no further action which should be undertaken to
comply with the provisions of the VCAA.
SERVICE CONNECTION
Factual Background
The veteran reported on a preservice medical history report
dated in August 1986 that she either had or had previously
had headaches, throat trouble, and leg cramps; no abnormality
was found on an August 1986 medical examination. All body
areas were normal on an April 1990 medical examination.
According to a May 1991 medical history report, the veteran
had or had had painful joints, frequent headaches, and
sinusitis; all body systems were normal on a May 1991 medical
examination.
On VA general medical examination in September 1994, the
veteran complained of joint pain, trouble breathing, and
headaches. The pertinent diagnosis was chronic fatigue. A
copy of this examination report that was subsequently added
to the file contains the diagnosis of chronic fatigue, by
history, and it was noted that the examination report had
been corrected on the computer.
VA treatment records for January 1995 reveal that the veteran
was evaluated for the complaint of fatigue syndrome, which
she said that she had had since coming back from service.
She noted lethargy; she did not have muscle weakness or
depression.
The veteran was hospitalized in February 1995 with complaints
of fatigue and diffuse tenderness. The diagnosis was mild
dyssomnia of unclear etiology.
An endocrine work-up was done in May 1995 to determine the
cause of the veteran's increased fatigue; the impression was
that there was no endocrine cause for the veteran's fatigue.
According to a June 1995 statement from Syed Amouzegar, M.D.,
he saw the veteran from October to December 1993 for
complaints of muscle weakness and pain and chronic fatigue.
Dr. Amouzegar felt that the veteran was suffering from
chronic fatigue syndrome that could have stemmed from her
participation in Operation Desert Storm.
According to a June 1995 statement from Edwin T. Pearce,
M.D., who treated the veteran from July 1991 to August 1992,
the veteran was treated primarily for emotional misfortune
and recurring vaginitis. She was treated for fatigue on one
occasion in December 1991, which Dr. Pearce said was probably
due to anxiety.
The veteran testified at a personal hearing at the RO in
September 1995 in support of her claim.
Support statements on file from people who knew her during
Operation Desert Storm, dated from 1995 to 1997, from people
she worked with after service and from her family are to the
effect that she appeared listless and tired after her Gulf
War service.
On VA examination in May 1998, the veteran complained of
fatigue, periodic low grade fevers, frequent headaches, and
generalized muscle aches and weakness since Operation Desert
Storm; she said that her symptoms had significantly improved
with Prozac. Laboratory tests were essentially within normal
limits. The diagnosis was chronic fatigue syndrome, by
history, symptoms improved significantly with Prozac. The
examiner concluded that the veteran did not meet the major or
minor criteria for a diagnosis of active chronic fatigue
syndrome. It was noted that she was able to work full-time.
According to a November 1998 VA examination report, there was
no adenopathy; a complete blood count was noted to be normal.
The assessments were that there was no evidence of chronic
fatigue syndrome by either clinical signs or symptoms and
that an abnormal thyroid function test was most likely
related to psychotropic medication. The examiner concluded
that the veteran did not have chronic fatigue, that her
symptomatology never really fit chronic fatigue syndrome, and
that her fatigue was more likely than not related to her
psychiatric problems and possibly aggravated by her breathing
problems that were associated with hypertrophic adenoids.
According to a February 2000 memorandum from a VA physician,
who had reviewed the veteran's claims files, VA examination
in September 1994 did not reveal any lymphadenopathy. It was
this physician's impression that the VA examiner in September
1994, who no longer worked at the facility, intended to
diagnose chronic fatigue syndrome by history. This physician
went on to note that the veteran's claims file revealed a few
symptoms of chronic fatigue syndrome and that separating
these symptoms from other conditions, such as
anxiety/depression, was difficult.
Analysis
Service connection is granted for disability resulting from
disease or injury incurred in or aggravated by active duty.
38 U.S.C.A. §§ 1110, 1131 (West Supp. 2000). Service
connection may be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (2000).
Service-connected compensation may be paid to a Persian Gulf
Veteran who exhibits objective indications of chronic
disability resulting from an illness or combination of
illnesses manifested by one or more signs or symptoms such as
those listed below. The symptoms must be manifest to a
degree of 10 percent or more not later than December 31,
2001. By history, physical examination and laboratory tests,
the disability cannot be attributed to any known clinical
diagnosis. Objective indications of chronic disability
include both "signs" in the medical sense of objective
evidence perceptible to an examining physician, and other,
non-medical indicators that are capable of independent
verification. Disabilities that have existed for 6 months or
more and disabilities that exhibit intermittent episodes of
improvement and worsening over a 6-month period will be
considered chronic. The signs and symptoms which may be
manifestations of undiagnosed illnesses include, but are not
limited to: (1) fatigue, (2) signs or symptoms involving the
skin, (3) headaches, (4) muscle pain, (5) joint pain, (6)
neurologic signs or symptoms, (7) neuropsychological signs or
symptoms, (8) signs or symptoms involving the respiratory
system (upper or lower), (9) sleep disturbance, (10)
gastrointestinal signs or symptoms, (11) cardiovascular signs
or symptoms, (12) abnormal weight loss, or (13) menstrual
disorders. 38 U.S.C.A. § 1117(a); 38 C.F.R. § 3.317.
Although the veteran has testified that she has chronic
fatigue syndrome due to service or that she has an
undiagnosed illness manifested by chronic fatigue due to her
service in the Persian Gulf, and there are lay statements on
file in support of the claim, a lay person is not competent
to offer medical opinions. See Espiritu v. Derwinski, 2 Vet.
App.492, 494-95 (1992).
While there was a diagnosis on VA examination in September
1994 of chronic fatigue syndrome, the words "history of"
were subsequently added to the diagnosis. Dr. Pearce noted
in June 1995 that the veteran only complained of fatigue on
one occasion between July 1991 and August 1992 and that this
was probably due to anxiety. In fact, the primary evidence
in support of the veteran's claim is the June 1995 statement
from Dr. Amouzegar. However, it was concluded on VA
examinations by two different VA physicians in May and
November 1998 that the veteran did not have chronic fatigue
syndrome or signs and symptoms of an undiagnosed illness
manifested by fatigue. Rather, it was noted in November 1998
that the veteran's fatigue was a manifestation of her PTSD.
Consequently, the Board finds that the preponderance of the
evidence establishes that the veteran does not have chronic
fatigue syndrome or chronic fatigue due to an undiagnosed
illness. Accordingly, service connection is not warranted
for this claimed disability.
ORIGINAL RATING
In accordance with 38 C.F.R. §§ 4.1, 4.2 (2000) and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the veteran's PTSD.
The Board has found nothing in the historical record which
would lead it to conclude that the current evidence of record
is not adequate for rating purposes, nor has the Board found
any of the historical evidence in this case to be of
sufficient significance to warrant a specific discussion
herein.
Factual Background
VA outpatient records reveal that the veteran was receiving
group psychotherapy in 1994.
On VA psychiatric examination in September 1994, the veteran
complained of feeling tired, of muscle pains, of trouble
breathing, and of nervousness and anxiety. She said that she
slept "ok." She was working full-time. On mental status
examination, the veteran was noted to be neat and clean. Her
affect was appropriate. It was noted that she had anxiety
and occasional depression. Generalized anxiety was
diagnosed. It was noted that the disability, social and
occupational, was mild to moderate.
The diagnosis on VA outpatient treatment in May 1995 was
depression, moderately severe; global assessment of
functioning (GAF) was 65.
According to an August 1995 private psychological evaluation,
the veteran judged her current mood to be 8 on a 10 point
scale; she denied current sleeping difficulties. She said
that she had been feeling better in recent months, which she
attributed to taking Prozac. The provisional diagnosis was
personality disorder, not otherwise specified.
The veteran testified at her RO hearing in September 1995 in
support of her claim.
Statements on file in support of the veteran's claim, dated
from 1995 to 1997, include notations of psychiatric problems
after the veteran's return from Operation Desert Storm.
The veteran said on VA psychiatric examination by a board of
two in November 1996 that taking Prozac had helped her
concentration; she had fewer mood swings and was sleeping
better. On mental status examination, the veteran was well-
dressed and well-groomed. Her affect was slightly labile.
She did not have any thought disorder. She did not show any
evidence of significant cognitive impairment. The assessment
was chronic PTSD. GAF was 85-90. The examiners noted that
even though the veteran had most of the symptoms of PTSD, the
disorder did not appear to have significantly impaired her
social or occupational functioning.
VA outpatient records from January to May 1998 reveal that
she appeared more depressed/irritable in January; her Prozac
was increased to 20 mg on odd days and to 40 mg on even days.
She noted problems with middle-of-night awakening in April
1998, for which she was given Ativan.
On VA psychiatric examination in May 1998, it was noted that
the veteran was taking Prozac, which had recently been
increased to 40 mg per day, and Ativan as needed for sleep.
She said that her mood was somewhat better over the previous
two weeks, although it was "bad" at times. She indicated
that she occasionally had memories of her experiences in the
Persian Gulf. Nightmares and flashbacks were noted to be
much improved compared to the past. She isolated herself
from other than family members. She indicated that she was
"hyper" at work but was able to accomplish her job well.
On mental status examination, the veteran was described as
neatly dressed. Her speech was of normal form and rate; her
affect was fairly appropriate, although inappropriately silly
at times. The veteran said that she was intermittently
depressed. There was no evidence of a thought disorder. She
was fully oriented. She had good insight into her condition.
PTSD was diagnosed. The global assessment of functioning
(GAF) was 75, indicating transient symptoms with only slight
impairment in functioning due to her PTSD. Her symptoms did
not make her unemployable.
Analysis
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
38 C.F.R. Part 4 (2000). When there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
Service connection for PTSD was granted by a rating decision
in December 1996, which assigned a 10 percent evaluation,
effective December 7, 1993, and the veteran timely appealed
the 10 percent evaluation. Consequently, the veteran's claim
is an original claim that was placed in appellate status by a
Notice of Disagreement expressing disagreement with an
initial rating award. The rule from Francisco v. Brown,
7 Vet.App. 55, 58 (1994) (Where entitlement to compensation
has already been established and an increase in the
disability rating is at issue, the present level of
disability is of primary importance.) is not applicable to
the assignment of an initial rating for a disability
following an initial award of service connection for that
disability. Rather, at the time of an initial rating,
separate ratings can be assigned for separate periods of time
based on the facts found-a practice known as "staged"
ratings. See Fenderson v. West, 12 Vet. App. 119 (1999).
The Board notes that effective November 7, 1996, VA revised
the criteria for diagnosing and evaluating psychiatric
disabilities. 61 Fed. Reg. 52695 (1996). On and after that
date, all diagnoses of mental disorders for VA purposes must
conform to the fourth edition of the Diagnostic and
Statistical Manual of Mental Disorders (DSM-IV). 61 Fed
Reg. 52700 (1996). In Karnas v. Derwinski, 1 Vet.App. 308,
312-13 (1991), the United States Court of Appeals for
Veterans Claims (Court) held that where the law or regulation
changes after a claim has been filed or reopened but before
the administrative or judicial appeal process has been
concluded, the version most favorable to the appellant
applies unless Congress provided otherwise or permitted the
Secretary of Veterans Affairs to do otherwise and the
Secretary has done so.
Under 38 C.F.R. § 4.132, Diagnostic Code 9411, effective
prior to November 7, 1996, a 10 percent rating is warranted
for PTSD when there is emotional tension or evidence of
anxiety productive of mild social and industrial impairment;
a 30 percent evaluation is warranted for PTSD when there is
definite impairment of social and industrial adaptability.
In Hood v. Brown, 4 Vet. App. 301 (1993), the Court stated
that the term "definite" in 38 C.F.R. § 4.132 was
"qualitative" in character, whereas the other terms were
"quantitative" in character, and invited the Board to
construe the term "definite" in a manner that would
quantify the degree of impairment. In a subsequent opinion,
the General Counsel of VA concluded that "definite" is to
be construed as "distinct, unambiguous, and moderately large
in degree." It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." VAOPGCPREC 9-93 (Nov. 9 1993). The Board is
bound by this interpretation of the term "definite."
38 U.S.C.A. § 7104(c) (West 1991).
A 10 percent evaluation is warranted for PTSD under the
criteria effective November 7, 1996, if there is occupational
and social impairment due to mild or transient symptoms which
decrease work efficiency and the ability to perform
occupational tasks only during periods of significant stress,
or when symptoms are controlled by continuous medication; a
30 percent evaluation is warranted for occupational and
social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, and mild memory loss (such as forgetting names,
directions, recent events). 38 C.F.R. § 4.130, Diagnostic
Code 9411.
The GAF Scale involves psychological, social, and
occupational functioning on a hypothetical continuum of
mental health-illness. A score of 61-70 involves mild
symptoms, such as depressed mood and mild insomnia, or some
difficulty in social or occupational functioning, but
generally functioning pretty well, has some meaningful
interpersonal relationships. When a score of 71 to 80 is
given, if symptoms are present, they are transient and
expectable reactions to psychosocial stressors with no more
than slight impairment in social or occupational functioning.
A score of 81-90 involves absent or minimal symptoms with
good functioning in all areas, interested and involved in a
wide range of activities, socially effective, generally
satisfied with life, no more than everyday problems or
concerns. Diagnostic and Statistical Manual of Mental
Disorders, 4th edition (1994).
Although the veteran has had some problems with psychiatric
symptomatology, including depression and anxiety, the
veteran's psychiatric symptomatology has been helped by
medication. She was working full-time, had an appropriate
affect, and was sleeping alright on VA examination in
September 1994; the disability was considered mild to
moderate. Moderately severe depression, with a GAF of 65,
was noted on a VA treatment record in May 1995; however,
three months later, the veteran was feeling better on Prozac,
8 out of 10, and was not having any problem sleeping. The
veteran was also doing well on Prozac when examined by VA in
November 1996. The Prozac helped her concentrate, prevented
mood swings, and helped her sleep. GAF was 85-90. When
examined in May 1998, GAF was 75 and the examiner found only
slight impairment in functioning. The medical evidence on
file shows that the veteran's PTSD is not productive of panic
attacks, suspiciousness, chronic sleep impairment, or memory
loss. In sum, the medical evidence demonstrates that the
disability causes no more than mild social or occupational
impairment and does not more nearly approximate the criteria
for a 30 percent evaluation than those for a 10 percent
evaluation under either the old or new criteria.
INCREASED RATING
In accordance with 38 C.F.R. §§ 4.1, 4.2 (2000) and
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has
reviewed the service medical records and all other evidence
of record pertaining to the history of the service-connected
chest scar. The Board has found nothing in the historical
record which would lead it to conclude that the current
evidence of record is not adequate for rating purposes, nor
has the Board found any of the historical evidence in this
case to be of sufficient significance to warrant a specific
discussion herein.
Factual Background
On VA general medical examination in September 1994, the
veteran's skin was considered normal. On special VA skin
examination in September 1994, it was noted that the veteran
had incurred trauma to the chest in 1991 with a reactive
neoplasm developing, which was subsequently excised.
Physical examination revealed a 1.25 inch by 1.5 inch healed
surgical scar of the anterior chest; it was flat,
symptomatic, and otherwise healed nicely. The diagnosis was
healed surgical scar.
The veteran testified at her RO hearing in September 1995
that her chest scar is unsightly and itches.
The veteran complained on May 1998 VA evaluation of her chest
scar of occasional itching and some tenderness. The area of
the scar in front of the upper left chest measured 2.5 x 1
cm, with no tenderness or adhesion, and no ulceration or
breakdown of the skin. There was some elevation but no
underlying tissue loss. There was no inflammation, edema, or
appreciable disfigurement; keloid formation was present. The
scar was noted to be darker than normal.
VA treatment records on file do not note any treatment for
the veteran's chest scar.
Analysis
A 10 percent evaluation is assigned for superficial scars
that are poorly nourished with repeated ulceration or that
are tender and painful on objective demonstration. 38 C.F.R.
§ 4.118, Diagnostic Codes 7803, 7804. Other scars are to be
rated on the limitation of function of the part affected.
38 C.F.R. § 4.118, Diagnostic Code 7805.
In every instance where the schedule does not provide a
noncompensable evaluation for a diagnostic code, a
noncompensable evaluation will be assigned when the
requirements for a compensable evaluation are not met.
38 C.F.R. § 4.31.
Disfiguring scars of the head, face or neck warrant a
noncompensable evaluation if the disfigurement is slight or a
10 percent evaluation if the disfigurement is moderate.
38 C.F.R. § 4.118, Diagnostic Code 7800.
Although the veteran has complained of itching and some
tenderness in the area of her service-connected chest scar,
the VA examination in May 1998 revealed that the scar was
healed without objective evidence of ulceration, tenderness
or functional impairment. Although the September 1994 VA
examination report indicates that the scar was
"symptomatic," the examiner did not identify tenderness,
ulceration, functional impairment or any symptom due to the
scar. Rather, the examiner indicated that the scar had
healed nicely. Therefore, it appears that the reference in
the examination report to the scar being symptomatic was
probably due to a typogragraphical error and that the
examiner intended to describe the scar as asymptomatic.
Finally, the Board notes that the scar is small and on a
nonexposed surface. Therefore, the Board concludes that the
scar is properly evaluated as noncompensably disabling under
the schedular criteria.
The Board has also considered whether the original rating or
increased rating claim should be referred to the Director of
the VA Compensation and Pension Service for extra-schedular
consideration under 38 C.F.R. § 3.321(b)(1) (2000). The
record reflects that the veteran has not required
hospitalization for either her service-connected PTSD or
chest scar and that the manifestations of neither disability
are unusual or exceptional. In sum there is no indication in
the record that the average industrial impairment resulting
from either disability would be in excess of that
contemplated by the assigned rating. Therefore, the Board
has concluded that referral of either claim for extra-
schedular consideration is not warranted.
ORDER
Service connection for chronic fatigue syndrome, also claimed
as chronic fatigue due to an undiagnosed illness, is denied.
An evaluation in excess of 10 percent for PTSD is denied.
A compensable evaluation for a chest scar is denied.
Shane A. Durkin
Member, Board of Veterans' Appeals